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Lawskills.com Georgia Caselaw
POWELL v. THE STATE.
S99A1258.
FLETCHER, Presiding Justice.
Murder. Cobb Superior Court. Before Judge Grubbs, pro hac vice.
A jury convicted Brian Lee Powell of felony murder and cruelty to children in connection with the death of Roselyn Link, his girlfriend's two-month-old baby. 1 Finding that the evidence was sufficient, trial counsel was not ineffective, and the trial court did not err in its rulings, we affirm.
2. Powell contends that the trial court erred in permitting a detective to testify concerning Link's statement to him at the hospital. At trial, the detective testified that Link told him she was not aware that the baby had any seizures during the past week or that Powell had administered CPR, but that Powell had told her that the baby fell off the bed. Later during the trial, Link testified that Powell said the baby fell off the bed on April 12 and had a seizure, but that she examined the baby and Roselyn did not have any problems.
Prior consistent statements are admissible as substantive evidence when the veracity of the witness's trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination. 3 Link was present at trial, she was subjected to cross-examination, and her credibility was challenged. In fact, the defendant's theory was that Link was responsible for Roselyn's injuries and Powell was on trial because he happened to be the caretaker when Roselyn succumbed to her prior injuries. Because the state met all three requirements for admitting prior consistent statements, the trial court properly permitted the detective to testify concerning Link's out-of-court statements.
3. To prove ineffectiveness of trial counsel, the defendant must show that his trial counsel's performance was deficient and that the deficient performance prejudiced him. 4 Trial counsel had handled more than ten murder cases in his twelve years of practice. In preparing for trial, he filed numerous pre-trial motions and reviewed the autopsy report, photographs, scientific evidence, and police statements of Powell and the victim's aunt. Trial counsel also talked with the defendant several times about testifying, contacted three physicians about the possibility of testifying as expert witnesses, and interviewed the treating physician, neighbors, and other potential witnesses, although Danielle Link, her sister, and her brother refused to speak with him. Because trial counsel was not deficient in his investigation of the facts, interviews of witnesses, or failure to call Link's brother as a witness and Powell has not shown how he was harmed by counsel's failure to invoke the rule of sequestration, we conclude that trial counsel was not ineffective.
4. The trial court did not abuse its discretion in failing to sever the cruelty to children and aggravated battery counts from the murder counts. 5
Notes
1  The victim died on April 21, 1997. Powell was indicted on October 2, 1997. A jury found him guilty on January 16, 1998, and the trial court sentenced him on February 26, 1998, to life imprisonment for felony murder and five years probation on the cruelty to children count. Powell filed a motion for a new trial on March 10, 1998, which was denied on May 6, 1999. Powell filed a notice of appeal on May 13, 1999. The case was docketed in this court on May 26, 1999, and submitted for decision without oral arguments on July 19, 1999.
2  Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
4  Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).
5  See Waites v. State, 238 Ga. 683 (235 SE2d 4) (1977).
Patrick H. Head, District Attorney, Maria B. Golick, Debra H. Bernes, Russell J. Parker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Angelica M. Woo, Assistant Attorney General, for appellee.
Lawrence W. Daniel, for appellant.
DECIDED OCTOBER 18, 1999.
Thursday May 21 03:10 EDT


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